Divorce Act needs to be updated to reflect new parenting realities

January 16, 2018

Many of the parents of the current generation of babies, toddlers and pre-schoolers were themselves children – or even just a twinkle in a parent’s eye – the last time the Divorce Act was substantively amended, more than 30 years ago.

That’s why the CBA’s Family Law Section has written to the Justice Minister asking for changes to the Act in three specific areas: relocation, child support in shared parenting situations, and terminology used in the Divorce Act.

Moreover, the idea of the “best interests of the child” must remain one of the Act’s foundational principles.

In all three of the specified areas, the CBA Section seeks clarity.

For example, “Relocation decisions are to be based on the ‘best interests of the child’ but that provides little guidance for individual relocation cases,” the Section says. “There is inconsistency in how the law is applied and significant unpredictability in this area.”

Clearer guidance about the “best interests test” would promote fairness and predictability, and coordinated law reform with the provinces and territories would also help address the problem. “The situation calls for legislative amendments to the Divorce Act to reflect current social science research and Canadian case law in relocation decisions.”

Similarly, the Section calls for a starting framework or formula for child support in shared parenting arrangements, which have increased even since the Child Support Guidelines were adopted 20 years ago. Determining child support with shared parenting remains a “difficult and thorny issue,” not to mention complex and confusing and often expensive to resolve. Parents without resources sometimes end up settling for less than they should receive just to avoid conflict.

“We suggest that the Federal Child Support Guidelines and the Divorce Act should be amended to assist in determining child support in shared parenting situations. The mechanism chosen should be user-friendly, fair, easy to understand, easy to implement and proportionate to the amounts at stake.”

In terms of terminology, “custody” and “access” are outdated and weighted with such baggage that their use alone can increase conflict, the Section says, noting that many provinces have moved away from those words to more progressive terminology.

And while the “best interests of the child” should be a foundational principle, that term would also benefit from a full explanation of just what it means. The Section points to its 1998 Custody and Access Review submission where it listed factors to better define best interests, including the emotional ties between the child and each person seeking custody or access, the child’s views and preferences, and the ability of each person seeking custody or access to act as a parent, among others. The Section suggests that factors such as the impact of domestic violence, and the child’s cultural, linguistic, religious and spiritual upbringing and heritage, among others, should also be considered.